Allowed

Thomas.M.R v. Saramma Thomas

Kerala HC23 Nov 2022MACA/701/2011

Case brief

AI extract

What is this about?

The High Court allowed the motor accident claim appeal, setting aside the Tribunal's dismissal and awarding 60% liability to the car driver via the insurer and 40% to the motorcycle rider. The court fixed a total compensation of Rs. 1,68,550, with the respondent insurer ordered to pay Rs. 1,01,130 with interest.

What did the court decide?

Awarded compensation of Rs. 1,68,550; ordered respondent insurer to pay Rs. 1,01,130 with 7.5% interest from the date of filing.

Thomas.M.R Vs Saramma Thomas — Motor Accident Claims | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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WEDNESDAY, THE 23RD DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944

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MACA NO. 701 OF 2011

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AGAINST THE AWARD DATED 22.06.2010 IN O.P(M.V) NO.198/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM

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APPELLANT/PETITIONER:

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THOMAS.M.R, SON OF RAPHEAL, METHASSERY HOUSE,
IRUMPANAM P.O., CHITHRAPUZHA, KANAYANNUR TALUK,
ERNAKULAM DISTRICT, PIN 682 309.

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BY ADVS.SRI.ANIL S.RAJ
 SMT.ANILA PETER
 SRI.G.ARUN GOPAN
 SMT.K.N.RAJANI

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RESPONDENTS/RESPONDENTS:

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1 SARAMMA THOMAS, HOUSE NO.29/129, JANATHA ROAD, VYTTILA, KOCHI-682 019.

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2 RATHEESH, S/O.RAJAPPAN, NIVARTHIL HOUSE, NEAR 4 CENT JUNCTION, THAICKAL, CHERTHALA, PIN 688 554.

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3 THE UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE NO.3, HOSPITAL ROAD,, ERNAKULAM, KOCHI-682 011.

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BY ADVS.SRI.RAJESH THOMAS
R1 BY SRI.T.K.KOSHY
R3 BY SRI.PMM.NAJEEB KHAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.701 of 2011

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JUDGMENT

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Dated this the 23^rd day of November, 2022

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This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 22.06.2010 in O.P(M.V) No.198/2006. A common award was passed by the Tribunal in the above Original Petition alongwith O.P(M.V) No.199/2006. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition.

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The petitioner in Original Petition No.198/2006 was travelling in a Motorcycle bearing Registration No.KL-7/AK 2987 as pillion rider and it was ridden at the relevant time of the motor accident by it’s owner who was not made a party in the Original Petition on hand. O.P(M.V) No.199/2006 was preferred by the rider of the Motorcycle seeking for compensation for the injuries sustained by him in the motor accident. Both claim petitions have been dismissed

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M.A.C.A.No.701 of 2011

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by the Tribunal, finding that the rider of the Motorcycle alone was negligent and responsible for the motor accident. The dismissal of O.P(M.V) No.198/2006 was also for the reason of non-joinder of rider of the Motorcycle there as the respondent.

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As revealed from the facts, the motor accident in the case on hand was occurred on 24.07.2005 at about 1 pm. A Car bearing Registration No.KL-7/V 2979 allegedly driven by its driver turned towards the right side of the road without showing any signal and thereby the Motorcycle happened to hit on its back. Negligence was allegedly on the part of the driver of the Car. Raising allegation that all the respondents are jointly and severally liable to pay a sum of Rs.3,00,000/as compensation in favour of the petitioner, the Original Petition on hand was moved before the Tribunal.

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Notice was served on respondents 1 and 2 who are

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the owner and the driver of the offending Car but they did not turn up to contest the Original Petition and therefore declared ex parte. The 3^rd respondent insurer has filed a written statement admitting insurance coverage for the Car as on

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M.A.C.A.No.701 of 2011

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date of the motor accident. It was contended that the motor accident was caused by the rider of the Motorcycle by his rash and negligent riding and that the Original Petition seeking compensation is bad for non-joinder of necessary parties, since the owner and the insurer of the Motorcycle were not impleaded as respondents in the Original Petition. The amount claimed as compensation was also disputed for being exorbitant.

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Before the Tribunal proof affidavit was filed by the petitioner and Exts.A1 to A6 were marked. Evidence of any nature was not adduced by the 3^rd respondent. The Tribunal found on the basis of the evidence on record that the motor accident was occurred due to the rash and negligent riding of the Motorcycle by its rider who was also it’s owner at the relevant time. Since the rider was not made a party, Original Petition No.198/2006 was dismissed.

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It was contended by Sri.Rajani K.N, the learned counsel for the petitioner that the Tribunal is erred and unjustified in arriving at a finding that the rider of the Motorcycle was negligent and responsible for the motor

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M.A.C.A.No.701 of 2011

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accident to occur. According to her, final report was filed by the Police after concluding investigation in the crime registered with reference to the motor accident in question against the driver of the Car. According to her, the final report was produced and marked in evidence as Ext.A3. It is contended by the learned counsel that when a final report chargesheeting the driver of the Car is available in evidence the Tribunal is highly unjustified in fixing liability for the accident on the rider of the Motorcycle and dismissing the Original Petition seeking compensation.

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A final report was filed and marked in evidence as Ext.A3, whereby the driver of the Car bearing Registration No.KL-7/V 2979 was chargesheeted for rash and negligent driving. The Tribunal failed to consider Ext.A3 but discerned from the materials on record that the rider of the Motorcycle was riding it without a driving licence. The Tribunal had also found from the materials forming part of the crime registered that the Car was proceeding ahead of the Motorcycle. The Tribunal took the view that had the rider of the Motorcycle exercised due diligence and care and maintained a reasonable

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M.A.C.A.No.701 of 2011

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distance with the Car, the motor accident in question could have been averted. The Tribunal lost sight of the fact that the Car turned to the right side of the road without showing signal. The Tribunal therefore, is found to have fixed the entire liability on the rider of the Motorcycle on a wrong perception of evidence. As already stated the rider of the Motorcycle being not a respondent in the Original Petition seeking compensation, the Tribunal was unable to fix the liability on him to pay compensation to the petitioner. Thus the Original Petition was dismissed by the Tribunal.

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The chargesheet can be relied on as prima facie evidence of negligence of the driver in a motor accident. As per Ext.A3 chargesheet, the driver of the Car stands chargesheeted for rash and negligent driving. But, it stands established from the evidence on record that the rider of the Motorcycle was not holding a valid driving licence. There was failure on his part also to maintain a reasonable distance with the Car proceeding ahead. If a reasonable care was taken by the rider of the Motorcycle and reasonable distance was maintained by him with the Car, the accident would not have

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M.A.C.A.No.701 of 2011

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been resulted. In that context, the fixing of entire liability for the motor accident in question on the rider of the Motorcycle being incorrect, is set aside. In the above circumstances, this Court finds justification in fixing responsibility on the driver of the Car as well as the rider of the Motorcycle. In

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view of the chargsheet laid against the driver of the Car, liability is fixed on both in the ratio of 60:40. Issue No.1 stands raised by the Tribunal is answered in the above manner.

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Medical documents relating to the case on hand were marked in evidence as Exts.A2, A5 and A6 series. Ext.A2 is nothing but the accident register cum wound certificate issued from Ernakulam Medical Centre, Palarivattom, Kochi. Immediately after the accident the petitioner was taken to R.C.M Hospital, Tripunithura and therefrom was transported to Ernakulam Medical Centre, Palarivattom. Abrasion on left knee, contusions on left hip and left thigh, trochanteric fracture shaft of left femur were diagnosed in the investigation held. The treatment certificate issued from Erankulam Medical Centre is marked in evidence

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M.A.C.A.No.701 of 2011

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as Ext.A5. As primary treatment, the petitioner was put on skeletal traction. He was also subjected to nailing of fracture of left femur. Treatment was also continued with antibiotics, analgesics and other supportive measures. He was advised non-weight bearing on left leg. He was treated as inpatient there from 24.07.2005 till 05.08.2005. On his visit at the hospital as out patient on 15.08.2005, sutures were removed. X-ray taken on 07.11.2005 reveals minimal formation of callus at the site of fracture and therefore he was admitted at the hospital on 05.12.2005. Distal locking screws were removed and bone marrow was injected at the fracture site. Supportive treatment was also given. He was advised full weight bearing walking and was discharged on 08.12.2005. X-rays taken successively on 18.04.2006 and 28.07.2006 showed complete union of fracture. It is found reported in Ext.A5 by the Doctor who had treated him that he may have to undergone a surgery for implant removal, if necessary. The medical bills pertaining to the treatment of the petitioner were already produced and marked in evidence as Ext.A6 series which disclose a total expenditure of Rs.46,550/- towards treatment.

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M.A.C.A.No.701 of 2011

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This Court is convinced on the basis of the evidence on record that the petitioner had sustained fracture on shaft of his femur and underwent two surgical procedures. He had been treated as inpatient for 15 days at Ernakulam Medical Centre, Palarivattom on two occasions.

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It was found pleaded in the Original Petition that the petitioner was a Mason by occupation having Rs.2,500/as his monthly earning. According to him, he was working under different employers. But, the petitioner failed to adduce evidence to establish those aspects. The motor accident being occurred in the year 2005, this Court finds it reasonable to fix Rs.5,000/- as his monthly income.

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As already stated, the petitioner had sustained serious fractures on his femur and had underwent two operations. He had also undergone inpatient treatment in two different spells of hospitalization. Taking all these aspects into consideration this Court finds it appropriate to consider loss of earning for 8 months. Thus, Rs.40,000/(Rs.5,000/- x 8) is awarded as compensation for loss of earning. This Court finds it reasonable to award Rs.6,000/-

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M.A.C.A.No.701 of 2011

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and Rs.5,000/- each as compensation towards bystander expenses and extra nourishment. As compensation towards damages to clothing this Court is inclined to grant Rs.1,000/-. Towards medical expenses, this Court is inclined to allow Rs.46,550/- as compensation. As compensation towards transportation expenses, petitioner being a resident of Irumpanam and the treatment having been availed from Ernakulam Medical Centre, Palarivattom, this Court is inclined to award Rs.5,000/- towards transportation expenses. Considering the factum that the petitioner had undergone two surgical procedures, Rs.40,000/- and Rs.25,000/respectively were awarded as compensation towards pain and suffering and loss of amenities and enjoyment in life.

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In the above manner of calculation, the petitioner will get Rs.1,68,550/- (Rupees One lakh sixty eight thousand five hundred and fifty only) as compensation.

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This Court has arrived at a finding on contributory negligence and the liability for the accident is fixed on the driver of the Car and rider of the Motorcycle in the ratio 60:40. As already noticed, the rider of the Motorcycle was

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M.A.C.A.No.701 of 2011

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not made a party in the Original Petition. Therefore, the petitioner has to suffer 40% of the compensation stands arrived at now and awarded. The 3^rd respondent being the insurer of the Car is liable to pay Rs.1,01,130/- (60% of Rs.1,68,550/-) (Rupees One lakh one thousand one hundred

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and thirty only) as compensation to the petitioner. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3^rd respondent is exonerated from paying interest for the compensation for 155 days, being the delay occurred in filing the appeal. The 3^rd respondent shall pay the sum to the petitioner as directed by Circular No.03/2019 dated 06.09.2019 issued by this Court, within two months from the date on which a certified copy of this judgment is received.

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M.A.C.A stands allowed accordingly.

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Sd/-

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MARY JOSEPH JUDGE

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NAB

Thomas.M.R v. Saramma Thomas

Case brief

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Thomas.M.R v. Saramma Thomas

Case brief

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